Transgender Fight in North Carolina May Hinge On 1964 Law

The legal battle over which bathrooms transgender people can use in North Carolina turns on a deceptively simple question: Can a law, written in the heat of the civil rights movement generations ago, apply to people the drafters never intended to cover?

The federal Civil Rights Act of 1964 was passed after years of marches, beatings, sit-ins and lynchings, part of the convulsive change across the country that gave African-Americans the same rights that white citizens had to drink at water fountains, get jobs, buy homes, stay at hotels and vote. A creature of its time, the law prohibits discrimination because of “race, color, religion, sex or national origin.”

The word sex made it into the bill at the last minute, almost accidentally. It was inserted only after the drafting and congressional hearings, when the bill went to the House floor. Representative Howard W. Smith, a Virginia Democrat who opposed the bill, introduced an amendment adding sex discrimination, prompting laughter from his colleagues, who mockingly offered other suggested additions.

Despite speculation that Mr. Smith meant to weaken support for the bill — he said his concern for women was sincere — his amendment passed, and so did the act. The rights of transgender people never came up.

This is the history that Gov. Pat McCrory of North Carolina turned to when he sued the Justice Department on Monday, arguing that sex means biological sex, and nothing more. “The Obama administration is bypassing Congress by attempting to rewrite the law,” he said.

But the Justice Department said the word also covers gender identity, not just anatomy, and filed its own lawsuit charging that a North Carolina law allowing people to use only those public bathrooms and locker rooms that correspond to their biological sex violates both the 1964 law and a 1972 federal law barring sex discrimination in education. In explaining her case, Attorney General Loretta E. Lynch also harked back to the civil rights struggle.

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A workman removing a restroom sign at Montgomery Municipal Airport on Jan. 5, 1962, in Montgomery, Ala., in compliance with a federal court order banning segregation.CreditAssociated Press

“It was not so very long ago that states, including North Carolina, had other signs above restrooms, water fountains and on public accommodations, keeping people out based on a distinction without a difference,” she said. “We have moved beyond those dark days, but not without a tremendous amount of pain and suffering and an ongoing fight to keep moving forward.”

Courts have often expanded the interpretation of laws in ways that the authors never imagined, to answer questions that earlier generations never thought to ask. For example, the Supreme Court’s ruling last year legalizing same-sex marriage was based on the 14th Amendment to the Constitution, adopted to protect black people after the Civil War.

That kind of thing infuriates conservative “strict constructionists.” But as a practical matter, courts are often less interested in asking whether the meaning of a law can be stretched, than in asking how far.

Advocates for transgender rights say the Justice Department’s case is less of a stretch than some others they have supported.

“The criticism on the right is often that there is no grounding in the text of the law, but in this case, I would argue there is,” said Chase Strangio, a lawyer with the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender and HIV Project. The North Carolina dispute is about who is really a man or a woman, he said, so “there’s no question it’s about sex.”

Conservatives say the Obama administration and federal agencies have overreached their legitimate power — unilaterally changing the clear meaning of the word sex, and the scope of the law. If the law needs changing, they say, it is up Congress to do so.

“If people want gender identity to be included, there’s a democratic process to go through,” said Jeremy Tedesco, senior counsel at the Alliance Defending Freedom, a conservative religious advocacy group, which represents parents who sued the Department of Education over a transgender girl being allowed to use the girls’ locker room at a high school. “But they just said the law covers gender identity, so be it.”

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Women and children protesting desegregation at William Frantz Elementary School on Nov. 15, 1960, in New Orleans, as three black students attended classes at the school for a second day.CreditBettman Archives, via Getty Images

But in fact, many court rulings and federal government actions have led to this point.

The 1964 law’s ban on sex discrimination was applied narrowly at first, but the Supreme Court broadened it in a series of rulings saying that sex discrimination includes sexual harassment, that the law protects men as well as women, and that discrimination against a person for not adhering to sex stereotypes in appearance is sex discrimination.

In a 1986 ruling, Justice William H. Rehnquist noted the unusual way that sex discrimination made its way into the Civil Rights Act, and wrote, “We are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’”

The Supreme Court has not addressed whether the same language protects transgender rights, but several lower courts have. In 2004, the United States Court of Appeals for the Sixth Circuit found that it does, and some other courts have since agreed. But in 2007, the United States Court of Appeals for the 10th Circuit made the opposite finding.

In 2011, the United States Court of Appeals for the 11th Circuit ruled that discriminating against a transgender person was sex discrimination — not based on the civil rights statute, but based on the 14th Amendment. And last month, relying on a 1972 law, Title IX, the United States Court of Appeals for the Fourth Circuit ruled that a high school must allow a transgender student who was born anatomically female to use the boys’ bathroom.

A hate crimes statute passed in 2009 became the first federal law to explicitly protect transgender people. A 2013 renewal of the Violence Against Women Act was the second. In 2012, the Equal Employment Opportunity Commission ruled, as the Sixth Circuit did, that discrimination against transgender people violated the Civil Rights Act’s ban on sex discrimination, a decision hailed by advocates as the executive branch’s first unequivocal statement to that effect.

“This is not new news,” said Brad Sears, executive director of the Williams Institute at the University of California, Los Angeles, School of Law. In federal actions, “there’s been specific inclusion of gender identity for a while.”

In extending civil rights protections in a new way, the government does not speak softly, and it does carry a big stick — the threat of taking away federal funding if an institution does not comply. With that possibility hanging over them, most entities quickly give in to government demands, as colleges and universities have in recent years when the Department of Education accused them of mishandling sexual assault complaints.

“You usually don’t see the showdown,” Mr. Sears said. But in an election year, such showdowns can become a strategy, a way of trying to mobilize voters.